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Creating Home Ownership for Your Kinds–Try an LLC

When parents want to help their children buy a home, they are often stymied by the myriad gift and other tax considerations which make providing for their children a difficult task. Recently, with the assistance of Scott W. Hazard, a Senior Vice President at GuardHill Financial, and a financial planning associate, our firm was able to circumvent the obstacles and provide a “clear path” to generous parents for effecting real assistance to their children.

There follows a description of how this transaction was structures:

      1. The generous parents form an Limited Liability Company (the “LLC”). The parents became the Managers of the LLC and are majority Members. The Operating Agreement for the LLC provided that the parents put substantially all of the cash required to close the purchase into the LLC. The children are also Members under the Operating Agreement but only to the extent of a few thousand dollars, which entitled them to a small share of the interest in the LLC.

      2. The LLC entered into the Purchase and Sale Agreement for the purchase. The LLC also became the Mortgagor when the purchase closed. Disclosure of all aspects of the transaction was made to the Mortgage lender, and the only extra document the Lender required were the personal guarantees of all four Members of the LLC.

     3. The transaction took place in 2008. Prior to the end of the year, each of the parents made gifts of $26,000 to the children. These gifts were made in the form of amending the Operating Agreement to increase the percentage interest of the children as Members of the LLC. The parents intend to make similar gifts in 2009 and thereafter, until the home is 100% owned by the children.

     4. Because of the size of the gifts, no gift tax return was required of the parents and the parents were not forced to use up any of their lifetime transfer exclusion. If the children are able to develop additional funds, they may make payments to the parents at any time to increase their Member ownership. It is generally advisable for the parties to obtain an appraisal of the home from time to time to make an accurate measure of the value of the Member transfers.
Even in today’s sometimes difficult real estate market, parents want to assist their children to become homeowners. The LLC route described herein is one which has many advantages, and I would recommend that any parents who are inclined to assist their children in attaining home ownership consider it.

The Resource Triangle–“Three” who can make it Happen

As I have evolved from an attorney who sat in my office and waited for the phone to ring into a realist who started to understand that marketing is an essential part of doing business, one thing became clearer and clearer. My best efforts involved finding motivated and talented realtors and mortgage originators with whom I could work on a regular basis.

This “Resource Triangle”, as I like to call it, makes perfect sense. All three professionals involved have one goal in mind, the successful closing of a residential real estate closing. All three have something else in common: if the transaction does not close, none of us gets paid. So if a realtor in one of my Triangles calls me up late on a Saturday afternoon and tells me she or he has a Buyer who is leaving town this evening, can I come by and introduce myself, I need to appear even if it means my Saturday night plans are delayed, or even cancelled. The same availability is required from the mortgage professional. If we are going to be “Resources” and part of the Triangle, we need to be there, any time, any place.

Once the Triangle is established, it can work to everyone’s advantage. The reliability component is huge. When I tell my realtor-partner, I can turn the Purchaser and Sale around in no longer than 48 hours, and I DELIVER on my promise, he or she knows that the chances of the deal coming together are increasing at a rapid pace, and what may have looked like “bragging” was only describing a standard that he or she knew could be achieved. When the mortgage originator promises a full-blown mortgage commitment in fourteen (14) business days, AND DELIVERS, comfort and credibility abound. When I promise a client who owns a home, and is buying another, that my realtor-partner can get their present residence sold in less than a month, AND DELIVERS, I look good, my realtor-partner looks good, and the magic word “closing” is that much closer.

I have been fortunate in that I have developed several unique Triangles in my practice, the difference in make up and composition being a function of the clients I am working with and geographic compatibility. The networking groups I am involved with, such as BNI, are a natural source for Triangles.

Most of the people reading this post are Triangle-eligible. They fit into one of the three (3) categories described.  I urge each and every one of you to get your Triangles in motion at the earliest possible opprotunity. The confidence in referring your most trusted clients and customers to people who have time and again DELIVERED can make all the difference for you. You will no longer be a face in the crowd. You will be the one person who can make the deal happen

The Perfect Closing-One Lawyer’s Dream

Strangely enough, after more than forty years of doing residential closings, I cannot remember one closing which was perfect in every way. My state, Massachusetts, still has lawyer’s serving as closing agents and also reviewing the title and writing the title insurance. This means that my firm, Topkins & Bevans, is responsible for checking at the appropriate registry to make sure that the Seller really owns the property, and there are no liens which cannot be paid off, or accounted for, at the Closing. We also need to check on water and sewer charges, and other municipal liens (such as property taxes) and common area fees, where a Condominium Unit is involved. Once we receive the rest of the “figures” from the Lender, we produce a HUD-1 Settlement Statement and distribute same to the Buyer and Seller, most of the time at least 36 hours prior to the Closing

There are a lot of balls up in the air, and our job is to try to assemble all of the players, and have each of them walk away with the thought that they had been well attended to, and fairly treated. So, in a perfect world, these are the goals, which I would always try to attain in my “perfect closing”:

1. The Buyer. Buyers are almost always nervous, whether this is their first, or twenty-first, purchase. My job is to make them calmer. I do this by being prepared for each closing. The Form 1003, which is a part of the Lender’s closing package, is packed full of information. I can find out the age of the Buyers, how many kids they have, what they do, and where they work. This almost always leads to a comment like:”Oh, you are a nurse, my sister-n-law is a nurse.What is your specialty?” or “Oh, you have four children, I have four children, where are they at school?” Get the picture!!! I have identified something I have in common with the Buyers. I am a human being, too, not a robot who is there to make sure they do not purchase the home of their dreams. I tell my Buyer at the start that I will take as much time as they wish going over, and explaining, the HUD-1. I tell them that this is really the most important part of their closing. The numbers on the HUD-1 help them to establish an “opening balance sheet” for their home. I never try to rush closings; this is a big moment for the Buyers, and I want them to relish it. Whenever possible, I take a picture of the Buyers with my digital camera after the Closing and send it to them with an email. I want them to have a memory of their “big day”

2. Sellers. Sellers have feelings, too. I tell them that I will explain the HUD-1 to them as well, especially if they do not have an attorney present. I try to move the closing along so the Seller is not inconvenienced.

3. Realtors. Most realtors come to closings. I try to involve them in the proceedings as much as they wish. I will ask their opinion on certain issues, and assist them by having an extra copy of the HUD-1 available for them to take with them. Lately, I have been trying very hard to make sure that Seller’s Agent, or the Buyer’s Agent, gets paid from my Client’s Account at the closing. These people have worked as hard as the Listing Agent for their commission, and there is no reason to make them wait additional weeks to be paid.

4. Mortgage Professionals. Most of my Originators do not attend the closing. I think they should but they do not. Since they are not there, I ALWAYS call or email them after the closing is completed. I tell them just how the closing went, and if the closing went especially well, I urge them to contact the realtor(s) or Buyers to inquire. The positive reinforcement the originator receives may be helpful for future referrals.

If I can do all these things every time, my closings will be perfect.I am not there yet, but at least I know what I am shooting for. I would be interested in hearing from any of you with helpful hints as to how I can make my closings better. I used to have a slogan “my closings close”. That is an important statement, but I would rather be able to say “My closing closed, and I enjoyed they way I was treated”.

1031 Exchanges–Having Your Cake and Eating it, too!!!!

1031 Exchanges, tax deferring transactions much used in our Western states, are moving east, and you should know more about them, if you own any kind of investment real property. In the landmark Starker decision in 1979, the United States Supreme Court substantiated the validity of the delayed exchange process. Prior to that time, the courts had never sanctioned an exchange whereby the relinquished property was sold and at a later date, replacement property was purchased. What this means to you as an owner of investment property, is that you can dispose of property in which you have sizable gain, but perhaps the headaches of management, and replace the old property with a different more manageable property, or even an ownership interest with others, in new property.

If done correctly, a 1031 Exchange can permit an investor to defer tax due in connection with the sale of real property, enabling the investor to consolidate, diversify, leverage or relocate her investment. Fortunately, in 1994, the Internal Revenue Service promulgated “Safe Harbor” regulations which provide the steps to take to make sure a 1031 Exchange produces the desired tax deferral. At Topkins & Bevans, we have always advised our exchanging clients to use a Qualified Intermediary which is affiliated with a Title Insurance Company. There have been some problems with intermediaries absconding with funds in the past, but never, ever, have there been problems with the Company we work with, OREXCO, an affiliate of Old Republic Title Insurance Company. In myriad transactions, we have been most satisfied with the level of expertise, service and financial integrity provided by that organization. OREXCO is best reached locally by contacting Lynne Bagby, the New England Regional Account Manager, at lbagby@ortc.com.

The key to a successful Exchange is identifying replacement property in a timely manner. It is essential that the investor locate “like-kind” property. Generally, real estate is like kind to all other real property, except foreign real property, as long as it is held for investment or the productive use in a trade or business. There is a 45 day time frame in which the investor must “identify” replacement property. Identifying the property on a timely basis is not all that must be done. It is also essential to “close” on the identified property in or within no longer than 180 days from the sale of the subject property. The 45 and 180 day periods are calendar days. There is no grace period if the day in question falls or a Saturday, Sunday or holiday.

Even if you own property with another investor, you may be able to exchange property if he or she does not wish to. In this type of transaction, you must clearly indicate and allocate each investor’s interest in the property before you sell. The investor who wishes to exchange may do so, and the other investor may receive cash (taxable). It is, of course, very important that the investors be clear on their intentions before entering into an exchange agreement with the Qualified Intermediary. Once a relinquished property is closed where all exchanging properties are under one exchange agreement, the exchangers do no have an option of dividing proceeds and buying separate replacement properties.

It is also possible to enter into an exchange transaction where part of the tax is deferred and a portion recognized as taxable gain. If the equity in your investment property is $150,000,00, and you wanted to use only $100,000.00 to purchase your investment property, and take $50,000 out to buy a new car, you would have a partially tax deferred exchange. The $50,000 you took to purchase the car is considered taxable cash “boot”.

Even is you live in one apartment, in the three family dwelling you own as an investment, you may be able to utilize a tax free exchange for the other two units. That type of approach works out extremely well if you are converting the investment rental property into condominiums for sale to third parties (See my previous post on this type of advantageous transaction). The unit you live in is sold as your principal residence, and you are eligible for the tax exclusion permitted for the sale of your principal residence where you resided for at least two of the last five years. The other two units can be sold as part of a 1031 Exchange, as long as the percentage of the value of the property is consistent with your past tax returns. This is a somewhat complicated area, and you should consult your tax advisor with regard to the particular aspects of this type of 1031 Exchange transaction.

I would be more than willing to communicate with you, and your tax advisor, to discuss any type of 1031 Exchange which you may be interested in. You should also feel free to contact Lynne Bagby at OREXCO for assistance. Our firm has enjoyed an extremely positive relationship with OREXCO and drawn much of the materials for this post from information furnished by OREXCO. If you use a sold, reputable company like OREXCO as your Qualified Intermediary, you will have little, if any, risk about the safety of your funds. In these days of uncertainty, selecting the “right” Qualified Intermediary is more important than ever.

TOPKINS & BEVANS is a mid-sized suburban Boston law firm, with offices located in Boston, Waltham and Braintree. Elliott Topkins, the senior partner in the firm, has more than 35 years of experience in real estate and estate planning matters. He is best reached at etopkins@topbev.com.

1031 Exchanges, tax deferring transactions much used in our Western states, are moving east, and you should know more about them, if you own any kind of investment real property. In the landmark Starker decision in 1979, the United States Supreme Court substantiated the validity of the delayed exchange process. Prior to that time, the courts had never sanctioned an exchange whereby the relinquished property was sold and at a later date, replacement property was purchased. What this means to you as an owner of investment property, is that you can dispose of property in which you have sizable gain, but perhaps the headaches of management, and replace the old property with a different more manageable property, or even an ownership interest with others, in new property.

If done correctly, a 1031 Exchange can permit an investor to defer tax due in connection with the sale of real property, enabling the investor to consolidate, diversify, leverage or relocate her investment. Fortunately, in 1994, the Internal Revenue Service promulgated “Safe Harbor” regulations which provide the steps to take to make sure a 1031 Exchange produces the desired tax deferral. At Topkins & Bevans, we have always advised our exchanging clients to use a Qualified Intermediary which is affiliated with a Title Insurance Company. There have been some problems with intermediaries absconding with funds in the past, but never, ever, have there been problems with the Company we work with, OREXCO, an affiliate of Old Republic Title Insurance Company. In myriad transactions, we have been most satisfied with the level of expertise, service and financial integrity provided by that organization. OREXCO is best reached locally by contacting Lynne Bagby, the New England Regional Account Manager, at lbagby@ortc.com.

The key to a successful Exchange is identifying replacement property in a timely manner. It is essential that the investor locate “like-kind” property. Generally, real estate is like kind to all other real property, except foreign real property, as long as it is held for investment or the productive use in a trade or business. There is a 45 day time frame in which the investor must “identify” replacement property. Identifying the property on a timely basis is not all that must be done. It is also essential to “close” on the identified property in or within no longer than 180 days from the sale of the subject property. The 45 and 180 day periods are calendar days. There is no grace period if the day in question falls or a Saturday, Sunday or holiday.

Even if you own property with another investor, you may be able to exchange property if he or she does not wish to. In this type of transaction, you must clearly indicate and allocate each investor’s interest in the property before you sell. The investor who wishes to exchange may do so, and the other investor may receive cash (taxable). It is, of course, very important that the investors be clear on their intentions before entering into an exchange agreement with the Qualified Intermediary. Once a relinquished property is closed where all exchanging properties are under one exchange agreement, the exchangers do no have an option of dividing proceeds and buying separate replacement properties.

It is also possible to enter into an exchange transaction where part of the tax is deferred and a portion recognized as taxable gain. If the equity in your investment property is $150,000,00, and you wanted to use only $100,000.00 to purchase your investment property, and take $50,000 out to buy a new car, you would have a partially tax deferred exchange. The $50,000 you took to purchase the car is considered taxable cash “boot”.

Even is you live in one apartment, in the three family dwelling you own as an investment, you may be able to utilize a tax free exchange for the other two units. That type of approach works out extremely well if you are converting the investment rental property into condominiums for sale to third parties (See my previous post on this type of advantageous transaction). The unit you live in is sold as your principal residence, and you are eligible for the tax exclusion permitted for the sale of your principal residence where you resided for at least two of the last five years. The other two units can be sold as part of a 1031 Exchange, as long as the percentage of the value of the property is consistent with your past tax returns. This is a somewhat complicated area, and you should consult your tax advisor with regard to the particular aspects of this type of 1031 Exchange transaction.

I would be more than willing to communicate with you, and your tax advisor, to discuss any type of 1031 Exchange which you may be interested in. You should also feel free to contact Lynne Bagby at OREXCO for assistance. Our firm has enjoyed an extremely positive relationship with OREXCO and drawn much of the materials for this post from information furnished by OREXCO. If you use a sold, reputable company like OREXCO as your Qualified Intermediary, you will have little, if any, risk about the safety of your funds. In these days of uncertainty, selecting the “right” Qualified Intermediary is more important than ever.

New Restrictive Financing Guidelines are Killing our Industry-A Call to Action

In a recent article in the New York TIMES, problems besetting our industry were the main focus. Examples of people who had committed to purchase as yet unbuilt homes, free standing and condominiums,  and were now “trapped” by new FNMA/FHLMC Guidelines, which have made many financing programs much more restrictive, in terms of down payment and sales of project units. While I did not generally recommend 95% and 90% financing to many of my clients, such programs were a fact a life as recently as 18 months ago, and that high leverage was often the only way a family could purchase the home of their dreams. New Condominiums were not limited to 70% pre-sale, either.

So, when FNMA and FHLMC developed more rigid standards for borrowing, at this difficult time in the housing industry, I have to ask myself “why”. These entities are no longer owned by public stockholders. For all intents and purposes, they are part of our government. Yet, the very same government that has given lip service to the real estate recovery as being essential to an overall recovery permits these agencies to act in a manner which prevents real estate activity.

Who, if anyone,  is really benefiting from the new restrictions on residential lending? Certainly, the potential Buyer who has put down a deposit without a financing contingency is not benefiting. That deposit money is probably gone, as liquidated damages for the Buyer’s failure to perform. So, not only is the contemplated sale up in smoke; so is any other real estate purchase for the Buyer losing his or her Deposit. “No sale” hurts the realtor, the mortgage originator, the closing agent and, ultimately, the Seller or Developer, because holding on to the Deposit is a poor alternative to making the sale of the property in question at the contract price.

It is time for each of us, whatever role we play in real estate, to inform our elected representatives in Washington, DC that these restrictions need to be eased. Dropping interest rates, alone, will not stimulate a  real estate recovery. Programs with some leverage need to be brought back. Pre-sale requirements need to be lowered. If we sit back and allow these new restrictions to continue, we have no one but ourselves to blame for what happens to our industry. Make the phone calls; send the emails, petition the people you put in office. The stakes are much too high to sit on our hands.

Massachusetts Real Estate Transactions-A world of their own

I am frequently asked by out of state realtors and mortgage professionals about deals “going into escrow” or the work of the “title company.” Very few out of Massachusetts people are aware of the idiosyncrasies of Massachusetts real estate practice, which include the following:

            1. An Offer and then a Purchase and Sale Agreement. The standard approach for a residential real estate transaction in Massachusetts involves signing a Offer, with respect to which a small deposit ($500 to $1,000) is delivered to the listing broker, a subsequent home inspection in or within seven (7) days of the Offer, a period of time after the Offer to review the Condominium Documents and financial materials, and then the execution of a Purchase and Sale Agreement, with substantially greater detail than the Offer, shortly after the home inspection is completed. Generally, there is a 5 to 10% total deposit associated with the signing of the Purchase and Sale Agreement, held, in escrow, by the listing broker or the Seller’s attorney. There is an important case which held that the Offer is an enforceable contract, but in almost all instances, the parties utilize the two-step Offer and subsequent Purchase and Sale Agreement for their deals.

            2. Massachusetts Real Estate Attorneys Stay Much More involved in the Total Transaction than in Other States. As a result of some statutory provisions, Massachusetts attorneys almost always serve a closing agents for purchases in Massachusetts. There is a Supreme Judicial Court (highest court in the Commonwealth) ruling which permits an attorney to represent both the Buyer and the Lender, as long as there is disclosure of same to the Buyer, and as long as the Buyer is apprised of the fact that if there is a conflict of interest between the Buyer and the Lender, the attorney will withdraw representation of the Buyer and represent the Lender, only. In my more than 40 years of practicing in Massachusetts, this has happened on two occasions, so there is really not much risk.

           3. Massachusetts Attorneys serving as Closing Agents do the Closing Scheduling and Write the Title Insurance for the Transaction. In most other states, there are “title agencies” which write the title insurance and prepare the title abstracts. That is not the case in Massachusetts. The experienced real estate attorney has the wherewithal to take care of the entire transaction, including title insurance. This permits closing in Massachusetts to be conducted speedily and without delay, because there is one central focus for the closing, rather than disparate elements which need to be tied together.

My firm is equipped to represent Lenders and out of state Buyers and Sellers for real estate purchases and refinancings. We welocme the opportunity to work with you on your Massachusetts transactions. With offices in Boston, Braintree and Waltham, we are equipped to handle the entire Commonwealth of Massachusetts, including Martha’s Vineyard and Nantucket for you and your customers.

Disposition of Offer Deposit–Ending Buyer and Seller Disputes over Small Amounts of Money

I have been pleasantly surprised at the number of comments I received relative to the disposition of Purchase and Sale deposits, and the problems that many of you have experienced because of the uncertainty in what to do about the “Offer Deposit” so-called, normally $500 or $1,000, which is delivered to bind the Offer. See my post on Purchase and Sale Deposits in www.realtorsresourceblog.com

In point of fact, the Seller changes his position once an Offer is accepted. In most cases, marketing efforts are sharply curtailed, and even if they continue, they are presented on a “back-up” basis which does not engender a lot of enthusiasm from prospective purchasers. So, there is a “price” involved in the Seller’s accepting an Offer, and that needs to be somehow recognized.

For the Buyer, the accepted Offer is an opportunity to “get serious” about the property. The Buyer pays for an inspection, and often has his attorney look over the Condominium Documents and Condominium Information, if this transaction involves the purchase of a Condominium Unit. Well drafted Offers (future blogs will consider the status of Offers in Massachusetts) will give the Buyer many “outs” if the transaction does not go forward.

What seems to be the problem is what you, as the realtor holding the Offer Deposit, must do with same if for some reason the deal does not go to signed Purchase and Sale Agreement status. The normal approach would be for the deposit to be returned,in full, to the Buyer if the Buyer decides not to proceed. Most realtors will require both the Seller and the Buyer to “sign off” on such return.

Most realtors I have dealt with will NOT return the deposit unless and until a piece of paper, authorizing the Release of the Offer Deposit, with signatures of both Seller and Buyer, is obtained. If it is not obtained, for whatever reason, the Offer Deposit goes into some form of purgatory in the realtor’s fiduciary account, never to see the light of day for either the Seller or the Buyer.

Suppose the deal doesn’t go because the Buyer just “walks away” and cannot be located. Suppose the deal doesn’t go because the Seller is not comfortable with the Buyer’s reasons for not going forward, and, in effect wants to punish the Buyer for acting irreponsibly or arbitrarily. Haven’t we seen this happen in our practices?

I have a suggested solution, which I would appreciate your feedback on. In my opinion, my approach champions some much needed reform in this area.

My suggestion is two-pronged:

            1. No Request from the Buyer.If the Buyer does no request  the Offer Deposit back, in or within thirty (30) days of the date of the Offer, the Offer Deposit, in full, shall be delivered to the Seller.

            2. Request from the Buyer for Return of Offer Deposit. If the Buyer requests the Offer Deposit back within said thirty (30) days, Eighty (80%) per cent of the Offer Deposit is returned, no questions asked. The remaining Twenty (20%) is delivered to the Seller to defray Seller’s costs for participating in the inspoection and delivering Condominium materials, if a Condominium Unit is the subjectof the sale.

This set of provisions would be an inetgral part of the Offer to Purchase, thus agreed upon in advance. The 80/20 split of the Offer Deposit is mechanical, but it ends disputes. Having the Buyer bear some responsibility for the work involved in getting to a signed Offer limits “tire kickers” who sign offers like eating popcorn. Serious Buyers may think twice before leaving $200 or $100 on the table. The transaction can “move on” without the weight of what to do with the Offer Deposit. Neither the Seller or Buyer can dispute the dispostion of the Offer Deposit. it is agreed upon beforehand, and is based on reason.

I would be interested if my readers think a system like this could work. It would end endless headaches for our profession, and the need to go to Small Claims Court or other litigation for a relatively small amount of money.

The Greater Boston Real Estate Offer Form and Purchase and Sale Form have not been amended for almost twenty years. Future posts will explore this situation and suggest some other needed revisions. I truly believe that the proposed “automatic” Offer Deposit solution makes sense and should be included in a new Offer Form. Get me your responses to this idea through blog comments or emails to etopkins@topbev.com. I promise to respond and keep this matter alive.

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It is the statement were talking about, and take a look at all their examples, and the assertion that Nike gave is characterised, in response to them, as I characterized it, so they say, we do not care what it says in the complaint. Objects may be exchanged or returned to any Foot Locker Cheap Nike Roshe Run 2014 Canada store nationwide. Delivery bill must accompany any returns/exchanges. Commonplace return policy applies (particulars). Returned/exchanged objects should be repackaged in the original bins with all labels, and all products being returned or exchanged have to be nike free run shoes shop men US in new situation. Objects shall be refunded the full price paid minus delivery and dealing with charges paid on original order. Certain restrictions and exclusions might apply.
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